District court strikes down last ban on carrying a gun in public (FURTHER UPDATED)

Posted Sun, July 27th, 2014 8:58 am by Lyle Denniston

FURTHER UPDATE: Tuesday, July 29, 11:12 p.m. The judge has delayed the ruling striking down the gun-carry ban for ninety days — until October 22 — to give the local government time to enact a new permit system. That was the length of delay on which the two sides could agree. The order is here.

————

UPDATE: Monday, July 28, 7:32 p.m. The Washington, D.C., government and its police chief on Monday asked the federal judge in this case to postpone the decision that would allow the public carrying of handguns in the city. The motion asked that the judge at least allow a delay while the city appeals, but also suggested a 180-day delay to allow the city council time to pass a new licensing law that would put some limits on public carrying of guns in the city. The motion argued that, because of the nature of the city as the nation’s capital, it should be treated differently on the scope of gun rights.

————

The nation’s last total ban on carrying a gun in public — a local handgun law in Washington, D.C. — has been struck down by a federal judge in a case that took almost five years to decide. The ruling in Palmer v. District of Columbia emerged on Saturday — a day when federal courts seldom issue decisions. The judge extended Second Amendment rights to have a gun so that they apply outside the home.

Written by a judge brought in from outside the city, the case had gained notoriety as the challengers to the D.C. law tried repeatedly to get a ruling, even asking a federal appeals court to step in to command that the case be decided. The ruling came more than seven months after the appeals court refused to get involved, saying it was confident the district court “will act . . . as promptly as its docket permits.” Frustrated, the challengers renewed that plea in May, and that was still pending when the judge ruled.

The case had begun in federal court in Washington about a year after the Supreme Court — in another District of Columbia case, in 2008 — had ruled for the first time that the Constitution’s Second Amendment protects a personal right to have a gun for self-defense, at least in one’s own home.

Although the Supreme Court a year later extended that right nationwide, the Justices since then have refused at least a half-dozen times — as recently as this past May — to settle disagreement among lower courts about whether the right actually exists outside one’s home. There has been no explanation for the repeated denials of review.

In Saturday’s ruling, Senior District Judge Frederick J. Scullin, Jr., who sits in Syracuse, N.Y., ruled that the Second Amendment right does reach beyond the home, finding that to be a natural outgrowth of the fundamental right the Supreme Court had created six years ago. He barred city officials from enforcing a ban — first imposed in late 2008.

At one point, the city government in the nation’s capital had a law permitting the police chief to issue licenses to carry handguns to individuals. On December 16, 2008, the city council and the mayor voted to take away that authority. As a result, Judge Scullin noted, “the District of Columbia lacks any mechanism to issue handgun carry licenses to individuals.”

In nullifying that ban, the judge relied upon rulings by the U.S. Courts of Appeals for the Seventh and Ninth Circuits, striking down public-carry bans in Illinois and San Diego County, respectively.

Four individuals, joined by a gun rights advocacy group, the Second Amendment Foundation, had challenged the District of Columbia ban in a lawsuit filed in August 2009. A month later, their lawyers filed a motion seeking to have the case decided summarily — that is, without a trial. The District’s lawyers filed a competing motion for such a ruling, in their favor. Those are the motions that Judge Scullin has now decided, ruling for the challengers and against the city.

After the case was filed, it moved at a slow pace in the federal district court in Washington, with another judge working on it. Finally, in a move to ease docket congestion in that court, Chief Justice John G. Roberts, Jr., in July 2011 reassigned it and other cases to Judge Scullin, who took over the gun rights case ten days later.

The summary judgment motions had been set for a hearing in late August 2012, but that was cancelled due to a “conflict in the court’s calendar.” The hearing was reset for, and eventually held on, October 1 of that year. Judge Scullin at that point took the case “under advisement.”

In August of last year, the challengers filed a motion asking the judge to expedite the case, noting that “this case is now in its fifth year before this court.” When no action resulted, the challengers last October asked the U.S. Court of Appeals for the District of Columbia Circuit to order Judge Scullin to decide the case. That plea was denied in a brief order last December 10, expressing confidence that the judge would act as soon as he could.

In the meantime, lawyers for the challengers and for the District of Columbia had continued to file a series of notices to the judge, about other court rulings bearing on the Second Amendment question. The last action that the judge took, before making his final ruling, came last March, when he turned down the challengers’ request to strike one of the filings by the District of Columbia citing another court’s work. (That motion to strike had been pending since May 2012.)

In his final ruling, Judge Scullin declared that the Second Amendment right to carry a gun outside the home applies not only to residents of Washington, D.C., but also to visitors to the city. One of the individuals who sued was not a resident. The ruling applies both to open and concealed carrying of handguns in public.

The judge did not impose any delay on his ruling against enforcement. His order simply barred enforcement as of the formal date of the ruling — July 24.

The order was signed in Syracuse on Thursday, and was released on the Washington court’s docket two days later.

It is unclear when a new case testing Second Amendment rights outside the home will again be pursued at the Supreme Court. The Seventh Circuit decision embracing such a right came to an end without further appeal, after the Illinois state legislature wiped out the last statewide ban on public carrying of guns, and the Ninth Circuit decision against the carrying ban in San Diego County has been bogged down in months of wrangling over pleas by California and others for reconsideration of the case before the en banc Ninth Circuit.

The Court’s next opportunity to consider a gun rights dispute appears to be a new case, Chovan v. United States. That case, however, involves Second Amendment rights to have a gun at home. The issue in the case is restoration of those rights for an individual who lost those rights after being convicted of a minor misdemeanor act of violence. It is a federal case, and the Justice Department opted this month not to respond. Unless the Court asks for a response, the case will be routinely denied.

Major Cases

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Air and Liquid Systems Corp. v. DeVries In the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger.

Nielsen v. Preap The judgments of the U.S. Court of Appeals for the 9th Circuit -- that respondents, who are deportable for certain specified crimes, are not subject to 8 U. S. C. §1226(c)(2)’s mandatory-detention requirement because they were not arrested by immigration officials as soon as they were released from jail -- are reversed, and the cases are remanded.

Washington State Department of Licensing v. Cougar Den Inc. The Supreme Court of Washington’s judgment -- that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation -- is affirmed.

Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.